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    Trustee in DBSI bankruptcy files adversary actions
    2010-11-25

    Introduction

    Earlier this month, the chapter 11 trustee (the "Trustee") in the DBSI bankruptcy began filing adversary actions seeking the avoidance and recovery of alleged fraudulent transfers. The Trustee filed the adversary actions against various defendants, some of whom the Trustee identifies as "John Doe 1 -10." This post will look briefly at the DBSI bankruptcy proceeding, why DBSI filed for bankruptcy, as well as some of the events that have transpired since the compnay filed for bankruptcy.

    Background

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Fox Rothschild LLP, Bond (finance), Bankruptcy, Debtor, Unsecured debt, Collateral (finance), Commercial property, Leasehold estate, Credit crunch, Title 11 of the US Code, Chief executive officer, Trustee, United States bankruptcy court, US District Court for District of Delaware
    Authors:
    L. Jason Cornell
    Location:
    USA
    Firm:
    Fox Rothschild LLP
    Swaps
    2010-12-01

    We are seeing more and more challenges by borrowers to swaps. No big surprise since, with falling interest rates over the past few years, the borrowers are on the wrong end of the transactions. Although swaps are considered independent of the loans, they are often secured by the same collateral and are usually crossdefaulted with the loans, so the obligations that arise from early termination (which can be significant) become part of the collection process and are being fought vigorously by borrowers.

    Filed under:
    USA, Banking, Derivatives, Insolvency & Restructuring, Litigation, Reed Smith LLP, Debtor, Collateral (finance), Limited liability company, Swap (finance), Mortgage loan, Foreclosure, Secured loan
    Authors:
    Peter S. Clark, II
    Location:
    USA
    Firm:
    Reed Smith LLP
    Trustee’s use of strong-arm powers limited where state ucc gives priority to the lender that perfects its lien post-petition
    2010-12-01

    Sovereign Bank v Hepner (In re Roser), 613 F.3d 1240 (10th Cir. 2010).

    CASE SNAPSHOT

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bankruptcy, Conflict of laws, Debtor, Collateral (finance), Interest, Secured loan, Title 11 of the US Code, Uniform Commercial Code (USA), Trustee, United States bankruptcy court, Tenth Circuit
    Authors:
    Christopher O. Rivas
    Location:
    USA
    Firm:
    Reed Smith LLP
    Lehman reaches settlement with perpetual in Dante case
    2010-11-30

    On November 17th, Lehman Brothers Special Financing Inc. ("LBSF") and its official unsecured creditors' committee filed a joint motion to stay BNY Corporate Trustee Services Limited's ("BNY") appeal for 90 days in the "Dante" matter, pending final settlement of the dispute between LBSF and Perpetual Trustee Company Limited ("Perpetual").

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Orrick, Herrington & Sutcliffe LLP, Bankruptcy, Unsecured debt, Collateral (finance), Swap (finance), Lehman Brothers, Trustee, United States bankruptcy court
    Authors:
    Nikiforos Mathews , Jim Croke , William S. Haft , Peter C. Manbeck , Al B. Sawyers
    Location:
    USA
    Firm:
    Orrick, Herrington & Sutcliffe LLP
    Protection of collateral of counterparties to uncleared swaps; treatment of securities in a portfolio margining account in a commodity broker bankruptcy
    2010-12-06

    On December 3rd, the CFTC published for public comment proposed requirements for swap dealers and major swap participants with respect to the treatment of collateral posted by their counterparties to margin, guarantee, or secure uncleared swaps. The proposal also would ensure that, for purposes of subchapter IV of chapter 7 of the Bankruptcy Code, securities held in a portfolio margining account that is a futures account constitute "customer property" and owners of such account constitute "customers." Comments should be submitted on or before February 1, 2011.

    Filed under:
    USA, Derivatives, Insolvency & Restructuring, Winston & Strawn LLP, Bankruptcy, Collateral (finance), Security (finance), Swap (finance), Futures contract, Commodity broker, Margin (finance), Broker-dealer, Commodity Futures Trading Commission (USA)
    Location:
    USA
    Firm:
    Winston & Strawn LLP
    Second Circuit affirms unfavorable plan treatment of senior secured creditor in DBSD North America
    2010-12-10

    The Second Circuit Court of Appeals issued a summary order this week upholding the aggressively unfavorable treatment of a senior secured creditor under the reorganization plan (the “Plan”) of DBSD North America, f/k/a ICO North America (“DBSD”).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Kelley Drye & Warren LLP, Bankruptcy, Collateral (finance), Security (finance), Interest, Market liquidity, Debt, Good faith, Voting, Secured creditor, Unsecured creditor, Title 11 of the US Code, Second Circuit, United States bankruptcy court
    Authors:
    Benjamin D. Feder
    Location:
    USA
    Firm:
    Kelley Drye & Warren LLP
    Real estate law: rethinking receiverships
    2010-12-20

    When defaults spiked for loans underwritten by commercial mortgage-backed securities (CMBS), many Texas attorneys sought state court-appointed receivers for commercial real estate assets.

    Placing a struggling property in receivership has long been a remedy available for lenders, but Texas' relatively expedited and inexpensive nonjudicial foreclosure process limited the remedy's practical value for traditional lenders.

    Filed under:
    USA, Texas, Insolvency & Restructuring, Real Estate, Securitization & Structured Finance, Munsch Hardt Kopf & Harr PC, Debtor, Collateral (finance), Commercial property, Debt, Mortgage loan, Foreclosure, Liability (financial accounting), Due diligence, Underwriting, Default (finance), Commercial mortgage-backed security, Mortgage-backed security, Secured loan
    Authors:
    Steven A. Caufield
    Location:
    USA
    Firm:
    Munsch Hardt Kopf & Harr PC
    What is the "primary purpose" of a credit transaction under the Truth In Lending Act? The Third Circuit will look beyond the facade to find out
    2010-12-19

    In St. Hill v. Tribeca Lending Corp., Case No. 09-2214, 2010 WL 2997724 (3rd Cir. Dec. 8, 2010), the Third Circuit showed that, in determining whether the Truth In Lending Act (TILA) applied to a credit transaction, it would look beyond obvious facts to ascertain a transaction's "primary purpose."

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Foley & Lardner LLP, Bankruptcy, Credit (finance), Collateral (finance), Statute of limitations, Consideration, Testimony, Mortgage loan, Refinancing, Trustee, Third Circuit
    Authors:
    Trent M. Johnson
    Location:
    USA
    Firm:
    Foley & Lardner LLP
    ION Media: developments in intercreditor disputes
    2011-01-05

    With the flood of debt-heavy capital structures created over the past decade, bankruptcy courts have been left to clean up the remnants of many failed transactions. Given the volume of debt provided, courts are likely to continue to be called upon to determine the relative rights of creditors that result from multi-tiered debt structures.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, McDermott Will & Emery, Bankruptcy, Credit (finance), Debtor, Unsecured debt, Collateral (finance), Debt, Foreclosure, Refinancing, Subordinated debt, Federal Communications Commission (USA), United States bankruptcy court
    Authors:
    Dick M. Okada , Bryan V. Swatt
    Location:
    USA
    Firm:
    McDermott Will & Emery
    Set-off and 'special accounts'
    2011-01-19

    Published in The Deal, January 5, 2011

    The recent decision in Bank of America, NA v. Lehman Brothers Holdings, Inc. (In re Lehman Brothers Holdings Inc., et. al.), No. 08-13555, Adv. Pro. No. 08-01753, 2010 Bankr. LEXIS 3867 (Bankr. S.D.N.Y. Nov. 16, 2010) has shone a 10,000-watt spotlight onto the scope of common law set-off in New York.

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Proskauer Rose LLP, Debtor, Collateral (finance), Waiver, Beneficiary, Debt, Common law, Bank of America, Lehman Brothers
    Authors:
    Joshua W. Thompson , Steven O. Weise
    Location:
    USA
    Firm:
    Proskauer Rose LLP

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